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In re Tah Investments, LLC

Court of Appeals of Texas, Fourteenth District

May 9, 2019

IN RE TAH INVESTMENTS, LLC, Relator

          ORIGINAL PROCEEDING WRIT OF MANDAMUS 269th District Court Harris County, Texas Trial Court Cause No. 2017-34739

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          PER CURIAM.

         On February 26, 2019, relator TAH Investments, LLC ("TAH") filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. The real party-in-interest and plaintiff below is M.M. ("Plaintiff"). In the petition, TAH asks this court to compel the Honorable Cory Sepolio, presiding judge of the 269th District Court of Harris County, to vacate his order denying TAH's motion for reconsideration of a December 21, 2018 order striking TAH's affirmative defense that Plaintiff cannot recover because of the exclusive remedy provision of the workers' compensation laws and the borrowed-servant doctrine ("TAH's workers' compensation defense").

         We conclude that relator is entitled to the requested relief.

         Factual and Procedural Background

         The underlying suit arises out of Plaintiff s allegation that she was sexually assaulted by an intruder while working the night shift at a hotel owned by TAH. TAH alleges that Plaintiff was hired by TAH and Emergent HR, Inc. ("Emergent") and that Emergent is a staffing company that TAH contracted with for Plaintiffs services.

         Plaintiff filed the underlying suit against TAH, alleging, among other things, that TAH was negligent for failing to provide adequate security measures at the hotel. Plaintiff, pursuant to Texas Rule of Civil Procedure 194, requested TAH to disclose the information and material described in Rule 194.2, which includes any insurance agreements. See Tex. R. Civ. P. 194.2. Plaintiff also sent TAH requests for production that sought, among other things, disclosure of any applicable workers' compensation policies:

• Request for Production No. 2 sought: "True and correct copies of any and all worker's compensation policies that [TAH] had in force and effect as of October 29, 2016."
On October 13, 2017, Defendant responded: "None."
• Request for Production No. 14 sought: "A true and correct copy of the Employer's First Report of Injury filed with the Texas Workers Compensation Commission."
On October 13, 2017, Defendant initially responded: "None."

         According to the affidavit of TAH's counsel, he believed these responses were correct when made, but after further legal and factual investigation, he discovered in early August 2018 that sexual assault is compensable under the Texas Workers' Compensation Act and that Emergent's affiliate, USA Staffing, LLC, carried a workers' compensation policy.

         On August 14, 2018, TAH amended its four-page answer to plead the exclusive-remedy provision of the workers' compensation laws as an affirmative defense. Also on August 14, 2018, TAH, via e-mail, served Plaintiff with its Supplemental Response to Plaintiff's Requests for Disclosure, which stated, "See attached insurance policy and endorsement." The workers' compensation policy on which TAH's defense is predicated was attached to the e-mail and was identified in the e-mail as "Insurance Policy." Accordingly, TAH disclosed its workers' compensation defense in its answer before the August 17, 2018 deadline for amending pleadings and produced the workers' compensation policy before the October 19, 2018 deadline for the completion of discovery stated in the docket-control order.

         According to the affidavit of TAH's counsel, although he knew that USA Staffing, LLC had a workers' compensation policy, he still did not know whether this policy was sufficient to invoke the exclusive-remedy provision of the workers' compensation laws. So, on September 11, 2018, TAH retained a workers' compensation attorney as an expert to help ...


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